Case number and/or case name
C-491/10 PPU Joseba Andoni Aguirre Zarraga v Simone Pelz (First Chamber) [2010] ECR I-14247
Referring court and Member State
Germany, Second Instance, Oberlandesgericht Celle
Summary
The case concerned a child born to a Spanish father and a German mother. The family lived together in Spain. Following the breakdown of the marriage, divorce proceedings were brought before the Spanish courts. In May 2008, the father was granted provisional custody of the child and the mother was granted access. In June 2008, the mother moved to Germany. Following a period of contact in Germany in the summer of 2008, the child, then aged 10, did not return to Spain. In July 2009, the custody proceedings continued in Spain and it was held that the child should be given the opportunity to be heard. However, the court declined the mother's request that she and the child be allowed to leave Spain were they to attend and also refused to allow evidence to be given by video conference. Therefore, neither the mother nor the child participated in the custody hearing. In December 2009, sole custody was awarded to the father. The mother appealed, requesting that the child be permitted to give evidence by video conference. That request was refused in April 2010 on the ground that, under the Spanish rules of procedure, the production of evidence on appeal was allowed only in certain circumstances. In the meantime, the father initiated two sets of proceedings in Germany. First, he sought the child’s return to Spain, on the basis of the 1980 Hague Abduction Convention. His application was, however, dismissed on the basis of Art 13(2) of the Convention as the child clearly objected to being returned to Spain. Second, the father initiated proceedings in Germany by the issue of a certificate by the Spanish court, pursuant to Art 42 of Brussels IIa, based on the divorce and custody order made in December 2009. At the first instance, the German court (Familiengericht Celle) held that the Spanish judgment could not be recognised or enforced in Germany on the ground that the Spanish court had not heard the child before handing down its judgment. The father appealed. The appellate court (Oberlandesgericht Celle) stayed the proceedings and asked the CJEU to determine whether, in circumstances such as those in the main proceedings, the German courts could oppose the enforcement of a judgment issued by the Spanish court which had been certified by that court on the basis of Art 42 of the Regulation as stating that it had fulfilled its obligation to hear the child before handing down its judgment, even though no such hearing had taken place. The CJEU ruled that, in circumstances such as those of the main proceedings, the court with jurisdiction in the Member State of enforcement could not oppose the enforcement of a certified judgment, ordering the return of a child who has been wrongfully removed, on the ground that the court of the Member State of origin which handed down that judgment may have infringed Art 42, interpreted in accordance with Art 24 of the Charter of Fundamental Rights of the European Union, since the assessment of whether there was such an infringement fell exclusively within the jurisdiction of the courts of the Member State of origin. This is a highly controversial decision but at least it was still possible to challenge the Spanish decision in the Spanish courts (see para 72). The CJEU gave guidance to the Spanish courts that it is not enough to rely on the courts in the country where the child is present having heard the child (contrary to the view of AG Bot, see paras 67-68 of the CJEU compared to para 106 of AG Bot’s Opinion). The Spanish courts must give the child a “genuine and effective opportunity to express” her views making use of the instruments of international judicial cooperation including Reg 1206/2001.